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Articles Tagged with sex discrimination

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.

The FIFA Women’s World Cup has captivated the attention of nations around the world, and the United States is no exception. With the group stage coming to a close this week, the U.S. Women’s National Team (“WNT”) has already demonstrated dominance in their first two games, beating Thailand and Chile by a combined score of 16-0. As the WNT’s World Cup successes have increasingly dominated headlines, the team’s recent lawsuit  filed against their employer, the U.S. Soccer Federation, Inc. (“USSF”), has attracted increased attention as well. While the team battles to defend their FIFA World Cup title on the pitch, they battle in court to defend their rights, and the rights of women nationwide, to receive equal pay for equal work.

The law has long been that all people in the United States are entitled to equal pay for equal work (regardless of gender, race, or any other protected characteristic), as well as fair employment standards and work conditions. These protections were established with the passage of the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964 and can be traced back to 1868 and the adoption of the Fourteenth Amendment to the United States Constitution. According to their Complaint, for decades the WNT has endured grossly unequal pay and inferior working conditions in comparison to the Men’s National Team (“MNT”). This has continued despite the fact that the WNT is demonstrably more successful and produces comparable revenue to the MNT for the USSF, which employs both the WNT and the MNT.

The Complaint filed by the WNT details the pay gap that exists between the two teams. It explains that if a male and female national team player each played 20 exhibition games in one year, the male player would earn an average of $263,320 while the female player would earn a maximum of $99,000. Male players who try out for and earn a place on a World Cup team earn $55,000, while female players only earn $15,000 for the same accomplishment. In 2014, the USSF provided the MNT with performance bonuses totaling $5,375,000 for losing in the Round of 16. By contrast, the WNT only earned $1,725,000 for winning the entire tournament. Despite advancing three rounds further that the MNT, and ultimately winning the entire tournament, WNT players earned less than a third of what the MNT players earned.  

JP Morgan-Chase (“JPMC”) has settled a class action lawsuit brought by male employees who alleged they were denied being provided benefits on equivalent terms as female employees, under JPMC’s primary caregiver (“PCG”) policy.  The male plaintiffs in this sex discrimination lawsuit claimed that JPMC treated them differently from their female coworkers between 2011 and 2017, when they were denied the sixteen weeks of parental leave their female coworkers were provided following the birth of their children and instead limiting them to two weeks of parental leave as “secondary caregivers.”  The terms of the settlement require that JPMC establish a five million-dollar ($5,000,000) compensation fund to compensate the class of male primary caregivers, comprising nearly 5,000 fathers. The settlement has been jointly presented to Federal Magistrate Judge Michael R. Barrett, of the United States District Court of Ohio, Southern District, for court approval.

Derek Rotondo, the named plaintiff in the lawsuit against JPMC, initiated the suit in 2017 when he was denied status as a primary caregiver. Rotondo alleged that he was told by the company that the mother was the presumptive primary caregiver. As a result, Rotondo was denied the sixteen weeks of leave he sought and should have received as his child’s primary caregiver, and instead was given only two weeks of leave. Shortly after being denied the time he should have been awarded as a primary caregiver, Rotondo filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) against JPMC, alleging that this denial of primary caregiver status and thus denial of fourteen (14) weeks of parental leave constituted unlawful gender discrimination in violation of Title VII. JPMC soon after reversed course and granted Rotondo the full sixteen (16) weeks to which he was entitled.

While the federal Family and Medical Leave Act (“FMLA”) provides fathers and mothers with the same rights for job protected leave to bond with newborn children or newly adopted children, some companies offer greater job protection or even paid leave to their employees in excess of what is required under Federal law. When an employer offers such additional rights to leave or job protection, these rights must be extended to their employees without reference to or distinction based on that employee’s gender. The issues raised in this lawsuit illustrate the importance for employers to ensure that they treat all employees, regardless of their sex, in the same manner and provide them with the same benefits and privileges of employment.

A group of female cocktail waitresses – referred to as the “Borgata Babes” – have finally received a win in their suit against the Borgata Hotel and Casino which has now been in the courts for more than a decade. The Atlantic County Superior Court, Appellate Division issued a ruling on May 20, 2019 finding that the Plaintiffs’ claims of gender-based discrimination, based on Borgata’s enforcement of personal appearance standards, should be allowed to proceed to trial.  In so ruling, the Appellate Division overturned the trial court and found that, while the standards themselves (including weight, appearance, and sexual appeal) do not violate anti-discrimination laws, Borgata’s enforcement of those standards could constitute gender based harassment under the New Jersey Law Against Discrimination.

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Accordingly, the Appellate Division remanded the case back to the trial court to conduct further proceedings consistent with their decision. Unfortunately, this will only potentially benefit the five remaining Plaintiffs, out of the original twenty-one “Borgata Babes” who began the suit in 2008. At that time, the Plaintiffs’ alleged that they were humiliated and harassed by Borgata’s management in efforts to have Plaintiffs comply with and meet Borgata’s personal appearance standards.

The standards imposed on the “Borgata Babes” do not automatically violate anti-discrimination employment laws because of the niche role that these employees fill for the hotel-casino. The physical appearance standards are permissible because “Borgata Babes” are not merely servers or waitresses, they are also expected to work as models and hosts to entertain Borgata’s guests and give those guests a Las Vegas experience in their Atlantic City location.  Thus, “Borgata Babes” are displayed as physically fit and are attired in costumes meant to emphasize their physical attractiveness. Maintaining this image is mandatory for a “Borgata Bab” to keep their job.

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.

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