SERVING OUR CLIENTS AND COMMUNITY DURING COVID-19

Articles Posted in Law Against Discrimination

A New York State trial court recently ruled that the arbitration clause in an employment contract requiring an employee to submit to binding arbitration for claims against her employer, including sexual harassment claims, was unenforceable following amendments to New York State’s Human Rights Law in 2018. The decision creates a split in authority between New York State and federal courts, following a 2019 decision in the Southern District of New York upholding the enforceability of arbitration agreements in employment contracts. That court found that the Federal Arbitration Act (FAA) preempts the New York statutory prohibition. These contrasting decisions may create uncertainty around the viability of employee/employer arbitration agreements in New York as they relate to harassment and discrimination claims.

IMG_2433-300x171This confusion exists in New Jersey as well. On March 18, 2019, Governor Murphy signed legislation that, among other things, prohibits mandatory arbitration of discrimination, retaliation or harassment claims as against public policy. While other jurisdictions, including New York, have enacted similar legislation pertaining to sexual harassment claims, the New Jersey law covers all claims arising under the New Jersey Law Against Discrimination (NJLAD). The New Jersey law also states that confidential settlement agreements “shall be deemed against public policy and unenforceable”. It is important to note that the prohibition of arbitration does not apply to collective bargaining agreements. It remains unclear whether New Jersey courts will find that this state law is preempted by the FAA, but nonetheless, employers run the risk of violating the new law if arbitration provisions are included in employment contracts going forward. The new law is not retroactive. It applies “to all contracts and agreements entered into, renewed, modified or amended on or after” March 18, 2019.

Since the signing of New Jersey’s law prohibiting the inclusion of arbitration agreements in employment contracts, New Jersey courts, both state and federal, have upheld the validity of arbitration clauses that were signed before enactment of the law.

As those of us who are Rutgers football fans know, finding a winning head coach can be very difficult.  Unfortunately, the Rutgers football head coach position has become available three times in the past eight years, which means three expensive and time consuming job searches. While there are always a large pool of candidates who would love the opportunity to be the head coach of Rutgers football, there are always some highly qualified candidates who choose to interview for reasons other than actually wanting the job.  One example is to gain leverage in securing a better contract from their current coaching position.  Another example, is when an unemployed coach who is still owed money under a term contract interviews for a job to prove they are mitigating their damages.

View-recent-photos-300x179The issue of mitigation of damages has been placed front and center in connection with a federal lawsuit former Arkansas head coach, Bret Bielema has filed against his former employer.  According to news reports, Bielema is being accused by his former for failing to mitigate when removing himself as a candidate for the Rutgers position during the search when it became likely Rutgers would be hiring Schiano.

Bielema sued the Arkansas Razorback Foundation for breach of contract by alleging that the school has failed to pay him $7 million in salary he was owed after his no-cause firing. Arkansas claims, however, that Bielema failed to mitigate his damages for failing to use reasonable efforts to secure a comparable coaching job and instead accepting a much lower-paying job in the NFL. The lawsuit, currently pending in federal court, presents an interesting legal issue that many plaintiffs in employment cases are faced with in litigating their claims of wrongful termination or breach of contract. Did Bielema mitigate the damages he claims to have sustained by his termination.

Workplace sexual harassment and assault have always been unfortunately common occurrences, and with the momentum of the #MeToo movement, these unlawful incidents are coming to light much more frequently. The repercussions for perpetrators is becoming more severe, but what about the unintended repercussions for the victims who come forward seeking justice? If an employee is sexually harassed or assaulted at work, how can he or she file a lawsuit without exposing himself or herself to further harm and humiliation? Does the victim have to choose between justice and personal security, or is anonymity an option in civil suits?  Unfortunately for victims of sexual harassment who would like to proceed with claims anonymously, the strong constitutionally protected presumption that courts are open to the public is often very high to overcome.

IMG_1457-300x169The issue of proceeding anonymously will be at issue in connection with two unnamed NFL players made recent headlines for filing a lawsuit against United Airlines on an anonymous basis.  In the lawsuit, the unnamed NFL players allege that flight attendants did not respond to their requests for help when a fellow passenger repeatedly groped their thighs and groins and verbally harassed them for wearing face masks on a flight from Los Angeles, CA to Newark, NJ in February. The lawsuit was filed in Los Angeles County Superior Court, and details the escalating verbal harassment and sexual assault that was allegedly reported to flight attendants twice, ignored both times, and then only addressed when one of the victims got out of his seat and sought help to have the woman moved away from them. The woman was finally removed from the victims’ vicinity for the remainder of the flight, and the victims were given $150 vouchers by the airline. The players are seeking unspecified damages for battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence and negligent hiring, training, supervision and retention.

Their attorney has stated that in bringing the lawsuit, the plaintiffs hope to help end this type of behavior and hold the airline accountable for keeping its passengers safe, but that they also fear the stigma that accompanies being male victims, which may be compounded by racial stereotypes about young African American males in particular. The NFL players have been allowed to proceed using John Doe pseudonyms so far, but it’s unclear how long their anonymity will last.

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.

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