SERVING OUR CLIENTS AND COMMUNITY DURING COVID-19

Articles Tagged with sexual harassment attorney

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.

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.

IMG_3469-300x169
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.

A jury has found in favor of a former PNC Bank employee and awarded her damages $2.4 million is damages after finding she was victim of sexual harassment.  Damara Scott, a former wealth manager who worked at the PNC Bank branch in Glen Ridge, New Jersey, claimed in her lawsuit that a regular customer grabbed her and grinded into her buttocks.

Employment Lawyers
The incident concerning the alleged sexual assault took place on October 20, 2013.   Ms. Scott alleges that she was stalked by a well-known and regular customer, named Patrick Pignatello, who followed her to her car when she was attempting to leave work for the day.  Ms. Scott alleged that Mr. Pignatello proceeded to utter vulgar, sexist and racist insults and touched and grouped her from her behind.  Ms. Scott testified that Mr. Pignatello  stated to her, “No, I’m not following you.  I offer full services and I’m willing to please.”  She alleges he then pumped and grinded into her buttocks.  Ms. Scott claimed that she was able to get away from Mr. Pignatello and went to the back of her car to drop her on the trunk so she could try to fight him off.

At this time, the branch manager had informed one of the tellers that Mr. Pignatello had followed Ms. Scott to her car and ran out through emergency door towards Ms. Scott. The branch manager screamed to Ms. Scott, “Are you ok?  What did Pat do? Do you want me to call the police?”  Ms. Scott claims that she was so shocked and embarrassed she could not respond appropriately and told the branch manager that she just wanted to leave and then left.

In recent years, allegations of sexual harassment and sexual misconduct have abounded throughout the United States, and, particularly, in the Hollywood spotlight. In response to continuing and increasing numbers of allegations of sexual harassment and misconduct in the entertainment industry, the Hollywood Commission on Eliminating Sexual Harassment and Advancing Equality formed in 2017.  The organization’s mission is “leading the entertainment industry to a strong and equitable future by defining and implementing best practices that eliminate sexual harassment and bias for all workers, especially marginalized communities, and by actively promoting a culture of accountability, respect and equality.”

fullsizeoutput_44-300x169The Commission is founded and chaired by Anita Hill, a law professor who became an icon for the #MeToo and #TimesUp movements before they existed in 1991, when she accused nominated Supreme Court Justice Clarence Thomas of sexual harassment. While Hill did not publicly oppose his nomination, a confidential FBI interview with Hill was leaked to the press, prompting Senate hearings on Justice Thomas’ nomination to be reopened. Hill testified that Thomas, her supervisor at the Department of Education and the Equal Employment Opportunity Commission (EEOC), had sexually harassed her. In light of Thomas’ denial of her allegations, Hill agreed to take a polygraph test – the results were consistent with her testimony. In Thomas’ 2007 autobiography, My Grandfather’s Son, Thomas refers to Hill as his “most traitorous adversary”. Hill’s work advocating for women in the workplace has continued, as she now leads the charge against sexual harassment in the entertainment industry.

Hill stated, “The Me-Too movement sent shockwaves throughout the Hollywood community. We all know that there is work to be done to create safe and respectful workplaces in the industry. Our next step is to understand the state of the industry today, so that we can implement effective solutions.” Recently, the Commission joined with the Ethics & Compliance Initiative, a non-profit research organization focused on empowering organizations to build and sustain high-quality ethics and compliance programs and cultures of integrity, to develop a survey.

A bipartisan team of New Jersey state legislators has announced its intention to introduce unprecedented legislation to address harassment and discrimination in New Jersey political campaigns and political parties. New Jersey is leading the push to create long-needed political campaign oversight and such legislation would be the first in the nation. The legislation comes at a time where more and more reports of rampant sexual harassment and sexual assault are brought to light in the media and in courts throughout the country.

IMG_0762-300x295The bill will create a new, independent process through which political and campaign staff and volunteers can immediately report allegations of harassment or discrimination without fear of retaliation. The proposed legislation will include clearly defined reporting processes with various reporting structures and mechanisms, codes of conduct, mandatory training, new guidelines and requirements for political campaigns and organizations, penalties for non-compliant entities and individuals, as well as oversight by at least one professional trained in supporting survivors of sexual assault.

While the new bill would create certain legal obligations specifically to campaigns concerning harassment, the dictates of the New Jersey Law Against Discrimination will continue to apply to campaigns.  The New Jersey Law Against Discrimination prohibits sexual harassment and discrimination to employees who work on the campaign and invitees of the campaign under the public accommodation provisions of the.  Invitees include persons such as volunteers, independent contractors and other persons who work on the campaign but may not be considered “employees” under the New Jersey Law Against Discrimination employment sections.

On December 11, 2019 at The Hollywood Reporter’s Annual Women in Entertainment breakfast gala, Gretchen Carlson announced the formation and launch of “Lift of our Voices,” an education and advocacy organization focused on putting an end to the practice of using Non-Disclosure Agreements (“NDAs”) to silence victims of sexual harassment and discrimination. In making the announcement, Carlson was joined on stage by Charlize Theron, an actress who is portraying Megyn Kelly in the upcoming film “Bombshell,” which details the Fox News sexual harassment scandal that saw then-CEO Roger Ailes forced to resign from the company. Carlson’s sexual harassment complaint against Ailes ultimately lead to his resignation, but her settlement with Fox News, and the NDA she was required to sign to enter into that settlement, have prevented her from speaking publicly about the case.

IMG_6669-300x169

An NDA is a contract that identifies certain information or topics that the parties agree they will not discuss with anyone following execution of the contract or agreement. NDAs typically are entered into in connection with an additional contract or agreement, such as an employment contract or a settlement or severance agreement. Often in the context of employment contracts, a prospective employee will agree not to discuss or disclose certain information regarding their employment to anyone outside the company, in exchange for being hired. In the context of settlement or severance agreements, a departing employee agrees not to discuss or disclose certain information regarding their employment or their reason for leaving the employment, in exchange for a settlement or severance payment.

In either situation, the NDA agreement can be used by the employer to facially “resolve” issues of harassment and discrimination without truly addressing systemic issues within their organization. In such a case, new prospective employees are unaware that they are entering a workplace where they may be unsafe. The public at large is likewise kept unaware, and individuals will then unwittingly support companies that they otherwise may choose not to support. Consumers are unable to apply commercial pressure to businesses that harbor and protect harassers, allowing those companies to circumvent a powerful societal check on business practices. Carlson and her organization are aiming to solve this problem, to give society at large access to this information, and more importantly, as Carlson stated, to give victims “back the voices they deserve.”

As with any legal issue, claims of sexual harassment involve many different legal factors that require consideration. Among these are a plaintiff’s potential damages, the statute of limitations related to the legal issue, and what exactly constitutes individual instances of harassment. These factors are made increasingly difficult to assess because of the nature of sexual harassment, especially when the harassment is pervasive as opposed to severe.

IMG_0999-300x169
Various court cases have provided clarity on many of the issues involved in sexual harassment cases. Karen Caggiano v. Armando Fontoura et al., helped to explain when a plaintiff’s right to file a complaint regarding sexual harassment expires, as well as what type of behavior may constitute continuous harassment.  In this case, Karen Caggiano endured years of pervasive harassment while employed as a Sheriff’s Officer in Essex County. Armando Fontoura, among others, constantly made derogatory comments relating to Ms. Caggiano’s sexual orientation and appearance. Her male coworkers regularly propositioned her for sex in extremely explicit and offensive language, and one individual went further, exposing himself to her on numerous occasions.

Fearing termination or other adverse employment action, Ms. Caggiano did not file a formal complaint regarding the harassment. However, in December 1996, Ms. Caggiano’s Captain overheard her discussing the harassment with a coworker. Her Captain ordered Ms. Caggiano to file a formal report of the conduct. Following this report, the incidents of harassment ceased, and Ms. Caggiano, along with several of the perpetrators, were transferred to different offices. A final incident of harassment occurred in February 1997, when Ms. Caggiano was assigned to attend same sexual harassment training in a group with two of her harassers. She was forced into this interaction despite the fact that there were approximately 400 employees attending the training in groups of 10. Nearly two years later, Ms. Caggiano decided to file a civil lawsuit alleging sexual harassment in the workplace.

A recent federal court decision serves as a reminder of the extremely high burden a litigant has in order to close court proceedings from the public.  In our judicial system, the doors of the courthouse open in assuring the public’s right to access to the judicial process. This federal court decision is being considered by many as a victory for the public’s freedom to access judicial information.

fullsizeoutput_3c-1-300x169
In the federal case, Silvka v. YMCA of the Pikes Peak Region, a Colorado District Court struck down the defendant employer’s motion for a gag order and a motion to restrict. In the opinion, Chief Judge Brimmer’s provided a thorough explanation and insight into the public’s right to have access to judicial proceedings. The order also reflected the core principle’s espoused in Professor Eugene Volokh’s objection to the motions raised by the YMCA; that the First Amendment and the common law assert a public right to access court proceedings whether civil or criminal in nature. 

The motion for a gag order came as a result of Silvka’s complaint against the YMCA of the Pikes Peak Region. The complaint alleged that a YMCA manager sexually harassed and forcibly groped the former employee and that the YMCA failed to conduct a proper investigation into her complaints.  The allegations of the sexual harassment lawsuit include a hostile work environment that involved employees binge drinking, and male upper level personnel abusing their power by coercing young female employees to have sex with them in order to advance in the organization. Silvka claimed to be the latest victim of this culture in her complaint. In response to the complaint and its publication by local news outlets in Colorado, the YMCA sought to impose a gag order fearing the complaint’s publication would prejudice a jury against them. 

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.

Contact Information