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Articles Tagged with New Jersey sexual harassment law

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.

New Jersey lawmakers have introduced a bill that will prohibit an employer from requiring that victims of discrimination, retaliation and harassment to keep their claims confidential as part of a settlement. Employers routinely require that non-disclosure provisions are included as a material term of any settlement agreement in cases of sexual harassment and other employment discrimination.  Bill No. 121, if passed, will render any confidentiality provision contained in a settlement agreement as unenforceable.

Earlier this year, the federal government passed the Tax Cuts and Jobs Acts (“TCJA”).  In an apparent response to the #MeToo movement, the TCJA included a provision that prohibits employers from taking a deduction for attorney fees’ and costs that are incurred in any sexual harassment or sexual abuse case if the settlement agreement includes a non-disclosure provision.  While this provision was clearly aimed at curbing the use of the non-disclosure provisions in sexual harassment lawsuits, it did not prohibit the use of non-disclosure provisions all together.  Under TCJA, an employer can still require a victim of sexual harassment or abuse to keep any settlement of his or her claim confidential if they are willing to forgo the tax deduction.

Bill No. 121 takes it much further by making any confidentiality provision in any settlement agreement that attempts to conceal discrimination, retaliation, or sexual harassment, null and void.  Under the bill, an employer must include a prominent notice that the clause is unenforceable if they choose to add it to any settlement agreement.  The bill also prohibits an employer from taking any retaliatory action against an employee who refuses to sign an employment agreement that contains any illegal non-disclosure clause.

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.

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