New Jersey sexual harassment lawyer

Cuomo’s Definition of Sexual Harassment with New York Law

May 21, 2021 | Smith Eibeler LLC

New York Governor Andrew Cuomo has been under fire since March 2021, having been accused by over a half-dozen women of sexual harassment, including staffers who say the harassment took place at work. Some are surprised by the allegations given that Governor Cuomo has publicly been seen as one of the nation’s leaders in protecting the rights of women and fighting workplace sexual harassment.

On August 12, 2019, Governor Cuomo signed legislation under the New York State Human Rights Law that made that state’s sexual harassment law one of the strongest in the country. The legislation included extending the statute of limitations for sexual harassment claims from one year to three years, and rejecting the requirement found in other states, including New Jersey, that the harassing conduct must be severe or pervasive to be unlawful. These protections were in addition to the laws that Governor Cuomo signed in April 2019 as part of his 2019 Women’s Agenda. That agenda required all state contractors to affirm that they have a sexual harassment policy and that all employees have received training; prohibited employers from imposing mandatory arbitration to deal with sexual harassment claims and limited non-disclosure agreements to only those situations in which they were expressly requested by the harassment victim; required public employees found to have intentionally sexually harassed someone to reimburse the state for any judgment against it; and extended the law’s protections to contractors, subcontractors, vendors, consultants and other non-employees providing services in the workplace.

The New York State Equal Employment Opportunity Handbook defines sexual harassment as “unwelcome conduct which is either of a sexual nature, or which is directed at an individual because of that individual’s sex when such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment, even if the reporting individual is not the intended target of the sexual harassment . . . Sexual harassment also consists of any unwanted verbal or physical advances, sexually explicit derogatory statements or sexually discriminatory remarks made by someone which are offensive or objectionable to the recipient, which cause the recipient discomfort or humiliation, or which interfere with the recipient’s job performance. . . . Quid pro quo sexual harassment occurs when a supervisor or other person with authority makes an employee’s submission to a sexual demand a condition of his or her employment. Sexual harassment need not be severe or pervasive to be unlawful, and can be any sexually harassing conduct that consists of more than petty slights or trivial inconveniences. It is not a requirement that an individual tell the person who is sexually harassing them that the conduct is unwelcome. In fact, the Human Rights Law now provides that even if a recipient of sexual harassment did not make a complaint about the harassment to the employer, the failure of the employee to complain shall not be determinative of whether the employer is liable.”

The Persistent Problem of Sexual Harassment and Assault within the Military

January 14, 2021 | Smith Eibeler LLC

Sexual harassment and assault against female members of the military remains a persistent problem that has rightfully received heightened attention in the last few years in the hope that it can be eradicated from all branches of our armed forces. Gender-based harassment and assault are prevalent in the world of veterans affairs as well, and the area of veterans’ health care in particular has come under scrutiny.

According to a national Health Services Research and Development survey conducted by the U.S. Department of Veterans Affairs (VA), 25% of women patients at VA health care facilities have experienced sexual or other harassment from other veterans. The VA defines patient harassment as “unwelcome physical, non-verbal or verbal behavior that interferes with a veteran’s access to and sustained engagement with VA health care. Harassment creates an intimidating, hostile or offensive health care environment.” The VA also provides examples of harassing conduct. For instance, the VA recognizes the failure to acknowledge women as veterans as gender harassment, and it occurs when someone asks a woman veteran if she is accompanying her husband to an appointment or questions her about the authenticity of clothing identifying a branch or era of service. On Vantage Point, the official blog of the VA, it also lists catcalls, whistles, stares, leering or ogling, telling women to smile, telling women they are too pretty to be veterans and following or cornering someone as examples of gender-based harassment. By all appearances, the VA is working to identify, educate veterans about, and eradicate this type of sexual harassment.

However, some question the VA’s dedication to gender equality and safety in its health care facilities after Andrea Goldstein, senior policy advisor on female veterans to the House Committee on Veterans Affairs and lieutenant commander in the U.S. Navy Reserve, alleged she had been sexually assaulted at a government-run veterans’ hospital. Goldstein, who has chosen to make her identity known, claimed in September 2019 that while she was waiting in line to buy food in the main lobby of the VA hospital in Washington, D.C., a contractor rubbed his body against hers and made suggestive comments of a sexual nature. Since that time, the VA and specifically its Secretary of Veterans Affairs for the Trump administration Robert Wilkie’s handling of her claim have come under scrutiny. The ensuing investigations have raised serious questions about how the VA handles complaints of sexual harassment, assault and retaliation and point to larger societal problems of victim-blaming and refusing to address systemic problems of gender equality and respect for female veterans.

How the EEOC is Hindering State’s Ability to Identify Systemic Employment Discrimination

November 9, 2020 | Smith Eibeler LLC

Late last month the state of California, the California Department of Fair Employment and Housing, the state of Minnesota, the Minnesota Department of Human Rights, the state of Maryland and the Maryland Commission on Civil Rights, together filed a lawsuit against the Equal Employment Opportunity Commission (EEOC) stemming from the EEOC’s decision to stop sharing important data with state and local “fairness in employment practices agencies” (FEPAs). The complaint filed in the Federal District Court for the Northern District of California alleges that the EEOC’s decision has negatively impacted state efforts to eradicate workplace discrimination and violates Title VII of the Civil Rights Act of 1964. It also alleges that the decision violates the federal Administrative Procedure Act, because the change was made without consultation or adequate notice to state FEPAs with whom the EEOC has longstanding worksharing agreements. The states and state agencies involved in the lawsuit are seeking an order setting aside the EEOC’s new policy and requiring the EEOC to reinstate FEPAs’ access to employment data.

What Is EEOC Data and Why Is It Important to The States?

Since 1966, spurred by the new legal requirements of Title VII of the Civil Rights Act of 1964 prohibiting employment discrimination based on race, color, religion, sex and national origin,the EEOC has required employers with 100 or more employees to report employment data broken down by job category, race, sex and ethnicity on forms called EEO-1s. The intent of the EEO-1 data is to help identify and eradicate workplace discrimination in accordance with Title VII. Specifically, Title VII requires employers to maintain records that can show whether unlawful employment practices have been committed, and to preserve and produce those records as mandated by the EEOC. In further support of that mandate, Title VII also requires that the EEOC maintain open communication and coordinate its efforts with FEPAs. In part, the EEOC must provide FEPAs employment information reported to it if the reporting employer is in the FEPA’s state. In return, FEPAs are bound by confidentiality provisions. Worksharing Agreements between the EEOC and FEPAs generally set forth terms governing the relationship between the two agencies and often require both agencies to make data available to the other if it will assist in carrying out their responsibilities under Title VII.

Sexual Harassment and Discrimination in New Jersey Police Departments

October 14, 2020 | Smith Eibeler LLC

Two recent New Jersey lawsuit settlements highlight the prevalent issues of sexual harassment and sex discrimination that woman police officers continue to face in the workplace. These cases illustrate how important it is for male-dominated work environments such as police departments to take preventative measures against sexual harassment and to take immediate remedial measures when it occurs.

Last month, it was reported that Franklin Township settled a gender discrimination and retaliation lawsuit with a female police lieutenant, Kristen Durham for the sum of $300,000. The settlement also allows Durham to remain on paid personal administrative leave until she achieves 25 years of service credit in the New Jersey Division of Pensions, Police and Firemen’s Retirement System.

Durham, of Robbinsville, started working for the Franklin Township Police Department in 1996, where women make up only about ten percent of the department. Durham is the first and only female lieutenant. In her complaint, she alleged that her male supervisors publicly engaged in extramarital affairs and openly discussed their sexual activities. One male supervisor even ordered Durham to watch a subordinate with whom he was having an affair when he was not at work and to report back to him if any male officers spoke to her. Durham’s responsibilities included recruiting for the department and in that capacity, she personally recruited nine African American officers, and often advocated for female, Black and Hispanic officers to receive equal treatment to their white male counterparts in the department.

MTV Jersey Shore Star Settles Sexual Harassment Lawsuit for 350K

September 28, 2020 | Smith Eibeler LLC

In recent celebrity employment law news, former reality television star, Angelina Larangeira (nee Pivarnick) settled a federal employment discrimination lawsuit against the Fire Department of the City of New York (FDNY) for $350,000. Pivarnick has been working as an Emergency Medical Technician (EMT) in Staten Island since 2016, where she alleges she was the victim of sexual harassment and assault. Specifically, Pivarnick sued the FDNY as well as one of her supervisors, Lieutenant Jonathan Schechter, alleging a hostile work environment and severe sexual misconduct that took place between 2017 and 2018.

In the Complaint, Pivarnick alleges that she was subjected to “repeated and unwelcome sexual advances, degrading comments about her body, vulgar sexual comments, inappropriate questions about her private relationships and, in one instance, the groping of an intimate part of her body without her consent”. This sexual misconduct allegedly took place in person at her work and via text message, when her supervisor sent her a message stating, “Your ass looked amazing and I wish I wasn’t working or in uniform because I definitely would’ve kissed those amazing lips”. As in many sexual harassment cases, Pivarnick was also assaulted. In her pleadings, she alleged that in May 2018, her supervisor groped her buttock and “made contact with her vaginal area.”

At the time her suit was filed, Pivarnick released a statement: “I suffered severe sexual harassment while working for EMS and was retaliated against by my management when I complained internally. It should go without saying that what I experienced has nothing to do with television or entertainment. Like all women, I am entitled to be treated with dignity and respect at work, and I should not have to accept unwanted sexual advances, crude comments about my body, or physical assault.” In response to news of her settlement breaking, Pivarnick stated, “I said when the case was filed that it had nothing to do with television or entertainment and that remains true. Sexual harassment is serious and has devastating consequences for so many women. It has for #MeToo. Although I experienced horrendous treatment at EMS, I’m pleased with the resolution of my case and I look forward to using my voice to speak about the need to protect all women from sexual harassment.”

A Long Way To Go: NJCASA Releases Report on Sexual Harassment in New Jersey Politics

August 19, 2020 | Smith Eibeler LLC

This month the New Jersey Coalition Against Sexual Assault (NJCASA) released its report, “It’s Everywhere, It’s Everything: The Report of the New Jersey Coalition Against Sexual Assault’s 2020 Survey on Misogyny & Sexual Misconduct in New Jersey Politics.” The report publishes survey results received from employees within New Jersey’s political sphere regarding their experiences of sexual harassment and misconduct in the workplace. It also makes recommendations for improving workplace culture around sexual harassment and misconduct, including increased education and training, the development of transparent, predictable reporting processes, and the creation of a culture of accountability in NJ politics.

Survey respondents held a variety of positions within state politics, including advocates and activists, state government employees, campaign staffers, lobbyists, partisan political operatives, staffers to elected officials, those holding elected office themselves, legislature employees, and county and municipal government employees. The largest reporting groups were advocates and activists (16%), state government employees (13%), campaign staffers (13%) and partisan political operatives (13%). The vast majority of respondents were white (85%), non-immigrant (94%), heterosexual (81%), cisgender (79%), highly-educated (89%) women (78%). As the report acknowledges, this means that this particular study provides a window into the sexual harassment and misconduct experienced and witnessed by a highly privileged group, and indicates that despite holding such privilege, these respondents were often without the proper resources to prevent, report, or obtain justice in the face of harassment and misconduct in the workplace. The report stressed the importance of interpreting the results as framed and informed by one specific type of woman.

It comes as no surprise that most survey participants (57%) reported having either experienced and/or witnessed sexual harassment and misconduct during their work in NJ politics, and that women are far more often the targets of this misconduct and more likely to report it than men. By occupation, 75% of county government employees reported experiencing harassment, and 77% of campaign staffers and 76% of lobbyists reported witnessing it. When defining the specific types of harassment encountered, verbal remarks and misogynistic comments were the most frequently reported and combined make up 45% of the total. Three percent of respondents reported having been raped. State government employees reported that misogyny is “very prevalent” in their workplaces.

Court Affirms Verdict of Transgender Person Harassed by Jersey City Police Department

May 14, 2020 | Smith Eibeler LLC

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.

The 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.

New Study Shows Uptick in College Sexual Assaults

November 7, 2019 | Smith Eibeler LLC

A newly released study by the Association of American Universities (AAU) has shown an increase in incidents of sexual assault and misconduct on college campuses in the United States since they last published a similar report in 2015. Using data gathered for the current study came from twenty-seven universities during the 2018 school year and 2019 spring semester; comprised of over 180,000 respondents from both public and private institutions, in both undergraduate and graduate programs. The study is yet another indicator that despite the increased public attention of the #MeToo movement, women continue to be confronted with issues of sexual harassment and sexual assault at an alarming rate.

The findings of the report categorize the respondents as male, female, transgendered, or non-identified gendered, as well as whether they were graduate or undergraduate students at the time. The findings of the report show that compared to the original 2015 report there is an increased awareness across the board on what is considered to be sexual assault and misconduct amongst all students. While this is encouraging, this finding coincides with a notable increase in sexual misconduct experienced by students even as campuses nationwide have implemented more comprehensive plans to address the problem.

According to the study undergraduate women are almost three times more likely than graduate women to encountered nonconsensual sexual contact (25.9% to 9.7%). The same holds true for undergraduate men (6.8%) when compared to graduate men (2.5%). While transgendered or non-identified gendered students also found that undergraduate students (22.8%) were subjected to more nonconsensual sexual contact than graduate students (14.5%). The study has shown that older students were less likely to experience nonconsensual sexual misconduct than their younger colleagues. This is true in the comparison of undergraduate and graduate students, but also when comparing younger undergraduates to their older counterparts. First year undergraduates were found more likely to report nonconsensual sexual contact than any other year as an undergraduate, with the rate decreasing steadily with each additional year of undergraduate study.

Congress Introduces FAIR Act Act to Curb Forced Arbitration of Employment Claims

March 6, 2019 | Smith Eibeler LLC

The rampant abuse of arbitration agreements, and the injustice that these agreements have created for employees, is finally being recognized and addressed. The Forced Arbitration Injustice Repeal Act, or “FAIR Act,” was introduced to the United States House of Representatives by Representatives Hank Johnson and Richard Blumenthal on February 28, 2019. The FAIR Act would, among other things, outlaw forced arbitration clauses in employment contracts or agreements. The FAIR Act would, instead, require that the employee agree to arbitration only after the dispute has arisen in order for any arbitration agreement to be enforceable.

If passed as written, the Fair Act would not have retroactive effect as to disputes that arose prior to its passing; however, the bill would have retroactive effect in that it would apply to arbitration clauses in employment contracts that were entered into prior to the bill’s passing. In other words, if the bill passes, all disputes arising thereafter would not be subject to an arbitration clause included in an employment agreement.

The current state of arbitration across the country is a classic case of too much of a good thing. In theory, arbitration would serve as an option afforded to both parties to a dispute, with each party given the opportunity to weigh the pros and cons of that option to determine if they wished to have their dispute resolved through arbitration. In reality, however, this is not how arbitration works most of the time. In the majority of arbitrations, one party was not truly given an option and did not understand anything about the process prior to “agreeing” to have any future dispute resolved through that process. As a result, many people never get their day in court, because they unwittingly signed away their right to do so.