SERVING OUR CLIENTS AND COMMUNITY DURING COVID-19

Articles Posted in Law Against Discrimination

Most people are aware that the state and federal law can provide legal protection against sexual harassment and other discriminatory conduct to employees in the workplace. No job-related action, from recruitment and interviewing to compensation or discharge can be intentionally influenced or biased by an employee’s protected class, such as sex, gender, race, disability and others protected classes. But what if the individual is discriminated or harassed outside the employment?  Will the law provide any protection to an individual who is subjected to sexual harassment or other forms of discrimination in places outside the employment, such as government building, campaign organizations or within a police department?  The Appellate Division has issued a decision providing further guidance in situations in which a person is subjected to non-employment related discrimination in a case entitled Holmes v. Jersey City Police Department.

IMG_4199-300x169The case involves a transgender man, who was arrested for shoplifting and brought to the Jersey City Police Department for processing.  The individual, Mr. Holmes, presented his valid driver’s license indicating his gender as male at the time of the arrest. After fingerprinting revealed Holmes’ former name and gender, the officers used offensive and demeaning language to verbally harass Mr. Holmes for the duration of his time at the police station. The officers also moved Mr. Holmes from a male holding cell to a female holding cell despite Mr. Holmes’ identification as male.

The New Jersey Law Against Discrimination prohibits gender-based discrimination and sexual harassment in a place of public accommodation. A place of public accommodation is any place that is open to the public, including schools, businesses, restaurants, government buildings and healthcare facilities. Public place accommodation violations include the use of offensive language, the display of demeaning images such as pornography or inappropriate drawings, as well as unwanted touching and other forms of physical harassment. This harassment can be unlawful regardless of whether it’s performed by an employee of the public place or another patron. Places of public accommodation have legal obligations to ensure that they have policies and procedures in place to prevent and stops the harassment once it knows about it or should have known about it, and it may not retaliate against the individual who was harassed or complained about harassment.

Under the New Jersey Law Against Discrimination (LAD), an employee is entitled to reasonable accommodations at his or her workplace when he or she has a disability and the accommodation allows him or her to carry out basic job functions. But what if the employee requires medical leave to seek treatment for the disability? How long can the requested leave be? What if the employee’s time off under the federal Family and Medical Leave Act (FMLA) has already been exhausted or is unavailable? And how can the employee prove that he or she would still be able to perform basic job functions if the accommodation is provided?

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The Appellate Division of the Superior Court of New Jersey answered these questions in a recent decision in the case of Pritchett v. New Jersey, when it held that leaves of absence are available accommodations under the LAD. In upholding the reasonableness of a request for a 4month extension of a medical leave, the Court determined that even unpaid leave that exceeds FMLA entitlements can be considered a reasonable accommodation, and should be assessed on a case by case basis. Additionally, the Court found that the LAD does not require expert testimony as to the individual employee’s ability to return to work. Such testimony need only attest to the fact that someone with the same disability could potentially function in the workplace.

In 2006, Shelley Pritchett was hired as a corrections officer at the Juvenile Justice Commission (JJC), and within a year, she was promoted to senior corrections officer. As a routine part of her job, Pritchett escorted inmates through and around the prison, responded to codes, and intervened to end physical fights between inmates when necessary. On June 8, 2011, Pritchett broke up a fight among several inmates and injured her neck, back and knee. Due to her injuries, Pritchett took medical leave pursuant to the FMLA until September 21, 2011, exhausting all of her available FMLA leave.

Governor Murphy signed legislation yesterday that amends the New Jersey Family Leave Act to provide job protections to employees who need to take leave from work during the COVID-19 epidemic in order to care for a family member because of qualifying reasons relating to the coronavirus. The passing of S2374 is part of a series of new laws enacted to address the COVID-19 pandemic and the severe impact it is having on New Jersey workers both at home and at their place of work.

IMG_4018-300x169In a press release, Governor Murphy said, “New Jerseyans should not have to make a decision between caring for a loved one with COVID-19 and keeping their job.  Our state is already home to the nation’s most comprehensive Family Leave Act, and it’s only right that we expand these protections to meet the unprecedented health crisis we are facing.”

The New Jersey Family Leave Act provides eligible employees with up to twelve (12) weeks of job protected leave for certain qualifying reasons relating to family leave.  These include bonding with a new born, adopting a child, the placing of a child into foster care with the employee or providing care to a family member who is suffering from serious health condition. The New Jersey Family Leave Act does not permit employees to take leave for their own serious health condition and therefore does not permit employees to take leave for their own heath related COVID-19 reason.  Employees who are suffering from COVID-19 could be eligible for leave under other laws such as the Family and Medical Leave Act, New Jersey Law Against Discrimination  or Americans with Disabilities Act.

For New Jersey employees, the short answer is yes.  On March 20, 2020, Governor Murphy signed into law new legislation that makes it unlawful for an employer to take adverse employment actions, including termination, against any employee for requesting or taking time off from work because the employee has or is likely to have the Coronavirus. The new law, A3848, comes in the wake of the Public Health Emergency and State of Emergency declared by Governor Murphy earlier this month. This new Coronavirus job protection law will provide victims of the virus with much needed protections from losing their job or being denied reinstatement.

IMG_3800-300x169The legislation was enacted as a part of the New Jersey’s continued efforts to deal with the Coronavirus pandemic and the devastating impact is having and will continue to have on individuals and their employment. In the last few weeks, the number of confirmed cases of Coronavirus in New Jersey has continued to climb and is expected to continue to rise expenditionaly. Among the attempts to slow the spread of the disease, medical professionals have advised those who have contracted or are suspected to have contracted the novel Coronavirus to quarantine themselves. Even those individuals who have not come in to contact with the disease are being urged to practice social distancing, isolating themselves in an attempt to limit potential exposure to the disease. As Governor Murphy stated in one of his recent press briefings, “Quite simply, stay at home.”

Prior to the passing of this Coronavirus job protection law, it was unclear what sort of job protection a quarantined individual would have during the Coronavirus outbreak. The New Jersey Law Against Discrimination, which provides employees protection from discrimination and retaliation in the workplace, has a broad definition of “disability” that includes certain types of serious illnesses. However, some courts have interpreted the New Jersey Law Against Discrimination’s broad provision concerning disabilities not to cover transient illnesses such as the flu. While the Coronavirus is concernedly much more serious than the common flu, it remains unclear whether the New Jersey Law Against Discrimination is a viable avenue to relief for affected employees.

The New Jersey Division of Civil Rights has published its guidelines concerning the administration of the New Jersey Diane B. Allen Equal Pay Act.  The New Jersey Equal Pay Act, first enacted into law in 2018, makes it unlawful for employers to engage in discriminatory compensation practices and retaliate against employees for complaining about workplace wage related issues.  The guidelines issued by the New Jersey Division of Civil Rights will assist employers, employees, lawyers and judges on how to interpret the equal pay law in situations involving workplace wage discrimination and wage disparity.

IMG_3572-300x169The New Jersey Equal Pay Act prohibits employers from paying employees who are members of a protected class less than their counterparts who perform substantially similar work and are not in a protected class.  Unlike many other state equal pay laws, protected classes under the New Jersey equal pay statute are not limited to gender and instead include all other protected classes under the Law Against Discrimination such as age, sexual orientation, race, disability, national origin and others.

The New Jersey Equal Pay Act amended the New Jersey Law Against Discrimination to provide for significant penalties to employers who violate the law.  In addition to an award of back pay for up to six (6) years from the date of the last unlawful pay occurrence, the law allows an employee to recover an additional amount equal to three (3) years of the awarded back pay monetary amount as treble damages.

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.

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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.

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.

IMG_2433-300x171Sexual 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.

A jury has found in favor of a former PNC Bank employee and awarded her damages $2.4 million is damages after finding she was victim of sexual harassment.  Damara Scott, a former wealth manager who worked at the PNC Bank branch in Glen Ridge, New Jersey, claimed in her lawsuit that a regular customer grabbed her and grinded into her buttocks.

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The incident concerning the alleged sexual assault took place on October 20, 2013.   Ms. Scott alleges that she was stalked by a well-known and regular customer, named Patrick Pignatello, who followed her to her car when she was attempting to leave work for the day.  Ms. Scott alleged that Mr. Pignatello proceeded to utter vulgar, sexist and racist insults and touched and grouped her from her behind.  Ms. Scott testified that Mr. Pignatello  stated to her, “No, I’m not following you.  I offer full services and I’m willing to please.”  She alleges he then pumped and grinded into her buttocks.  Ms. Scott claimed that she was able to get away from Mr. Pignatello and went to the back of her car to drop her on the trunk so she could try to fight him off.

At this time, the branch manager had informed one of the tellers that Mr. Pignatello had followed Ms. Scott to her car and ran out through emergency door towards Ms. Scott. The branch manager screamed to Ms. Scott, “Are you ok?  What did Pat do? Do you want me to call the police?”  Ms. Scott claims that she was so shocked and embarrassed she could not respond appropriately and told the branch manager that she just wanted to leave and then left.

In recent years, allegations of sexual harassment and sexual misconduct have abounded throughout the United States, and, particularly, in the Hollywood spotlight. In response to continuing and increasing numbers of allegations of sexual harassment and misconduct in the entertainment industry, the Hollywood Commission on Eliminating Sexual Harassment and Advancing Equality formed in 2017.  The organization’s mission is “leading the entertainment industry to a strong and equitable future by defining and implementing best practices that eliminate sexual harassment and bias for all workers, especially marginalized communities, and by actively promoting a culture of accountability, respect and equality.”

fullsizeoutput_44-300x169The Commission is founded and chaired by Anita Hill, a law professor who became an icon for the #MeToo and #TimesUp movements before they existed in 1991, when she accused nominated Supreme Court Justice Clarence Thomas of sexual harassment. While Hill did not publicly oppose his nomination, a confidential FBI interview with Hill was leaked to the press, prompting Senate hearings on Justice Thomas’ nomination to be reopened. Hill testified that Thomas, her supervisor at the Department of Education and the Equal Employment Opportunity Commission (EEOC), had sexually harassed her. In light of Thomas’ denial of her allegations, Hill agreed to take a polygraph test – the results were consistent with her testimony. In Thomas’ 2007 autobiography, My Grandfather’s Son, Thomas refers to Hill as his “most traitorous adversary”. Hill’s work advocating for women in the workplace has continued, as she now leads the charge against sexual harassment in the entertainment industry.

Hill stated, “The Me-Too movement sent shockwaves throughout the Hollywood community. We all know that there is work to be done to create safe and respectful workplaces in the industry. Our next step is to understand the state of the industry today, so that we can implement effective solutions.” Recently, the Commission joined with the Ethics & Compliance Initiative, a non-profit research organization focused on empowering organizations to build and sustain high-quality ethics and compliance programs and cultures of integrity, to develop a survey.

Governor Phil Murphy has signed into law several bills that will significantly expand protections for New Jersey workers. The new legislation includes a package of bills that aim to protect the rights of workers who have been misclassified as independent contractors.  The new law provides for penalties against employers who misclassify their workers as independent contractors instead of employees.

IMG_3012-300x176The punitive aspect of the new law aims to encourage employers to appropriately designate employees as such, and therefore affording them the legal protections provided to employees under various state and federal employment laws. However, this controversial bill has sparked much debate regarding the future of workers in the “gig” economy. Opponents of the law contend that the new law will create significant financial burdens on businesses who will then in turn refuse to employ these workers.

New Jersey employment law distinguishes between two types of workers: employees and independent contractors. While regular employees enjoy and have access to wage theft protections, overtime pay, workers’ compensation, unemployment benefits, sick and family leave, health and safety, and anti-discrimination protections, independent contractors receive no such benefits. Historically, employers were required by law to pay tax contributions on employee’s wages only, and not those of independent contractors. This resulted in a scenario where it is enticing for employers to classify, and perhaps even misclassify, workers as independent contractors under any circumstance. The new legislation aims to combat such conduct and improve protections for misclassified workers.

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