Articles Posted in Sex Discrimination

The “Diane B. Allen” New Jersey Equal Pay Act was enacted in April 2018, and made effective as of July 1, 2018. In passing the Equal Pay Act, the legislature did not expressly state that the law would be applied retroactively to claims that arise before July 1, 2018.  In September 2018, the first court decision applying the New Jersey Equal Pay Act was decided by the United States District Judge William Martini of the District of New Jersey in Perrotto v. Morgan Advanced Materials, which held that that the New Jersey Equal Pay Act should not be applied retroactively since the legislature did not specifically provide so.

Since its enactment, the New Jersey Equal Pay Act has widely been recognized as providing the strongest protections to workers of any equal pay law in the United States.  The New Jersey Equal Pay Act, which amended New Jersey’s Law Against Discrimination, prohibits discriminatory pay practices for protected classes for performing substantially similar work. The law is not limited to gender-based pay discrimination, but also includes other protected classes such as race, disability and age. Under the law, an illegal employment practice occurs every time an employee is impacted by a discriminatory compensation decision.

The New Jersey Equal Pay Act also provides for broad protections against retaliation for employees who seek redress from discriminatory pay practices. Specifically, it prohibits an employer from taking reprisals against any employee for requesting from, disclosing with, or disclosing to an employee or former employee or a lawyer from whom he or is she seeking legal advice or governmental agency for information regarding the job title, occupational category, and rate of compensation on the basis of a protected trait such as sex, race, disability, age or others.

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.

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.

In July 2018 Elizabeth Rowe, the principal flutist and Walter Piston chair in the Boston Symphony Orchestra (“BSO”), filed a gender discrimination lawsuit alleging that the BSO violated the newly enacted Massachusetts Equal Pay Act.  Rowe argues that the BSO was paying her less to perform substantially similar work – when viewed in terms of skill, effort, and responsibility – than it was paying her male counterparts, simply because she was a woman and they were men.  Gender is a protected class, under the Massachusetts Equal Pay Act and most other civil rights statutes, and discriminating on the basis of one’s membership in a protected class is against the law.

Rowe framed her argument by pointing to one of her BSO colleagues, the orchestra’s principal oboist John Ferrillo.  As another principal in the orchestra, Ferrillo holds a similar position to Rowe, and yet his salary is nearly $65,000 greater than hers. Comparing these two positions is naturally an imperfect exercise, as an oboe and a flute are obviously different instruments.  A rough approximation can be made by looking at one piece of objective data: since joining the BSO in 2004, Rowe has performed as a soloist 27 times, while Ferrillo has performed as a soloist just 14 times.  Notably, Ferrillo supports Rowe’s efforts to obtain equal pay.  At the request of Rowe’s employment attorney, Ferrillo provided a statement of his opinion that Rowe was “every bit [his] match in skill, if not more so.”

Rowe’s case provides a look at the problem of gender discrimination on the individual level, but it is a systemic issue in orchestras, and can be difficult to isolate due to the many factors that impact salary decisions.  The BSO has raised some of these factors in defending the discrepancy in Rowe’s pay: the talent pool for certain instruments is deeper and thus they are in lower demand; individual players can be uniquely talented leading to a bidding war over their services; random factors akin to ‘right time, right place’ can come into play.  When looking at some nation-wide statistics, however, these explanations become dubious.  As the Washington Post reported, an analysis of 78 top-earners from 21 orchestras in the United States shows that: (1) 82% of those top-earners are men; (2) the men in the pool make on average just over $52,000 more than the women; and (3) the top male earner makes $535,789 while the top female earner makes only $410,912.

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.

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 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.

The United States Supreme Court has ruled against a gay couple in favor of a Colorado baker who refused to bake a wedding cake for their wedding in the case Masterpiece Cakeshop v. Colorado Civil Rights Commission.  But lest people think that the Supreme Court was ruling on whether a business can refuse to provide goods or services to an individual based upon their sexual orientation, or based on religious objections, it was not.  That decision will surely have its day.

The Supreme Court ‘s ruling was limited to the actions of the Colorado Civil Rights Commission in which it ruled against baker Jack Phillips. This case was brought by same sex couple, Charlie Craig and David Mullins, who had gone to the suburban Denver Colorado Masterpiece Cakeshop to order a custom wedding cake for their upcoming wedding.   Baker Jack Phillips told the couple he would not create a cake for their same sex wedding because of his religious belief but told the couple that they could purchase pre-made products.   According to Mr. Phillips, baking a custom-made cake for a same sex couple interfered with his Christian beliefs.

The couple complained to the Colorado Commission in 2012 arguing that the baker had violated public accommodation law by discriminating against them on the basis of their sexual orientation under the Colorado Anti-Discrimination Act.  The Colorado Anti-Discrimination Act prohibits discrimination on the basis of an individual’s sexual orientation discrimination in a place of business engaged in any sales to the public and any place offering services to the public.  After holding formal hearings, the state administrative law judge rejected the baker’s First Amendment claim that it was a violation of his right to the free exercise of religion. Mr. Phillips felt that he would be compelled to create a cake that would require him to utilize his artistic talents to express a message that he disagreed with, on the basis of his religion.  The Commission and the Colorado Court of Appeals affirmed the decision.

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.